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Religious Freedom, yet again...

By Rev. Dennis Holtschneider, CM

Holtschneider-2020

 

A Catholic, a Christian, and a Jewish university president all went to court and, unfortunately, it’s not the joke it sounds to be.

 

Part I.

A few years back, ACCU weighed in on behalf of Duquesne, Manhattan, and Xavier in Chicago when the National Labor Relations Board (NLRB) made its own determinations whether they were sufficiently Catholic to be beyond the NLRB’s jurisdiction.   

Many Catholic universities recognize faculty or employee unions of various sorts.  As an association, ACCU takes no position on the internal decisions of its various institutional members.  So, why did we take a position in these cases?  Because of the novel and technical way the NLRB went about asserting its authority.  

Past Supreme Court precedent had ruled that the NLRB did not have authority over faith-based institutions, so the government office decided to take it upon themselves to decide which institutions were, in their sole opinion, “faith-based.”  Focusing on such things as whether only Catholic courses were offered in theology departments, or whether only Catholics could teach them, or whether faculty or students were required to assent to Catholic teachings, government employees in that office decided the three Catholic colleges did not match THEIR standards for what constituted a Catholic university.  In each case, the NLRB created criteria that would be NLRB's standard for whether these institutions could claim to be Catholic institutions.

These universities appealed the NLRB’s assertion of jurisdiction, and ACCU signed onto an amicus brief.  Rising all the way to the Federal Appeals Court here in Washington, the NLRB lost all three cases decisively.  The Court reaffirmed the long-standing Supreme Court precedent making clear that no government office could create its own criteria and decide whether an institution was religious in character.  It was enough for the institution to declare it, make it public, and be affiliated with a recognized religious organization.  

Ultimately, the NLRB chose not to appeal the case to the Supreme Court, and it appeared for the better part of a year that the issue was behind us.  Such was not the case, however, as the NLRB simply turned its attention to Philander Smith College, a United Methodist college located in Arkansas.  

 

Part II.

Now the NLRB is trying yet another novel tack, asserting that because Philander Smith College does not have a contract under U.S. civil law with the United Methodist Church, they are not technically a faith-based institution.  Despite its founding by the Church, the bishop’s presence on their board, the requirement that 1/3 of the board be appointed by the United Methodist Church, and clear public statements on their website all notwithstanding, the NLRB is trying again to substitute their own judgments for whether a school is “religious” and therefore beyond their reach. 

Few Catholic institutions would be judged “Catholic” by this new standard.  Catholic universities don’t use contracts between our universities and our founding religious orders or dioceses.  We use charters, bylaws, and statutes, and have done so from the very beginning when Georgetown University was first chartered in 1789.  

ACCU has been in conversation with Philander Smith’s legal team, and it is likely that we will submit an amicus brief in this matter since the outcome of their fight will affect our institutions directly. 

...[F]aith-based institutions are the ones who get to determine what it means to be “faith-based” at our institutions.  We will be defending the separation of Church and State and free exercise of religion.

 

Part III.

A third case recently came to our attention on a very different matter.  Yeshiva University refused to recognize a proposed LGTBQ+ student organization, asserting their right as a faith-based institution to declare what is and is not aligned with the tenets of their faith.  They operate in New York City, which has a local Human Rights Law.  The students filed for relief in NYC court asserting that the Human Rights Law supersedes Yeshiva’s rights in this matter.  

This is a complex one for ACCU, since many of our Catholic institutions have long-established and recognized LGTBQ+ student organizations.  They see these clubs as a vital acknowledgement of LGTBQ+ populations in our midst, and as one manner among others to address the needs of these students for support.  Others among our institutions do not recognize LGTBQ+ student organizations, finding it critical that they avoid any semblance of disagreement with Church teaching.  Similarly, Church membership, theologians, and bishops have varying positions on how best to support LGTBQ+ populations and welcome them and their families into the life of the community and Church.  As a Church, we are of many minds about an issue we are continuing to learn and reflect upon.

Amidst this broad range of opinion, ACCU has been asked to support Yeshiva unreservedly in its decision.  Why would we do so?  To preserve our own ability to make any faith-based decision for ourselves.  If a local ordinance can outweigh hard-won rights under the Constitution, our colleges have much more to worry about than this one social controversy.  Our argument, yet again, will be that faith-based institutions are the ones who get to determine what it means to be “faith-based” at our institutions.  We will be defending the separation of Church and State and free exercise of religion.

In 1785, James Madison anonymously penned his “Memorial and Remonstrance Against Religious Assessments.”  In it, he powerfully began by observing that humanity’s subservience to its established government is second to humanity’s subservience to the Creator.  Elected officials within government, he therefore reasoned, dare not reach above the limited authority of the government they serve and assert themselves into the religious convictions of the faithful, even when those convictions vary across multiple faiths. 

 

Our faith brings convictions and, therefore, brings definitions and even limits to what we would tolerate on our campuses to be done in the name of our campuses.  

 

In 2022, ACCU finds itself defending that principle.  We may differ on unionization or LGTBQ+ matters, but I suspect we would be united in asserting faith-based reasons to deny a self-proclaimed KKK student group that sought recognition on our campuses, or if a neo-Nazi group sought student funding.  Our faith brings convictions and, therefore, brings definitions and even limits to what we would tolerate on our campuses to be done in the name of our campuses.  

 

What's Next?

It's possible that ACCU will be accused of being anti-union or homophobic as we speak to these court cases.  The truth is that we are defending the demarcation line against which government can define the terms and exercise of religion.  It’s unfortunate we must do so in cases that begin in such controverted matters, but we don’t get to choose the battles that come in our direction.  We only get to decide whether and how best to engage them.  

 

 

Rev. Dennis H. Holtschneider, CM, is president of the Association of Catholic Colleges and Universities.


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